Enter your email to subscribe:

This fall, on October 16, DePaul Law School's Center for Intellectual Property Law and Information Technology and the Program in Cultural Heritage Law will host a conference on "Acquiring and Maintaining Collections of Cultural Objects: Challenges Confronting American Museums in the 21st Century."

As Saddam Hussein's government fell in April 2003, news accounts
detailed the pillaging of from the Iraq Museum. The looting of nearly
15,000 items from the Museum's collection grabbed headlines and briefly
focused international attention on Iraq's threatened cultural heritage
and the efforts to recover missing items. Less dramatic, though far
more devastating, has been the subsequent epidemic of looting at
thousands of archaeological sites around the country. Illegal digging
on a massive scale continues to this day. If unaddressed, the same
fundamental deficiencies that left Iraq's museums and sites vulnerable
to looters will threaten the cultural heritage of other politically
unstable regions.

Antiquities under Siege examines the criminal activity that
continues to erode the traces of Mesopotamian, Judeo-Christian and
Islamic cultures buried in the desert of Iraq, and investigates the
global implications of this ongoing catastrophe. This book demonstrates
that the disasters that have befallen Iraq's cultural heritage in the
wake of the US-led invasion are both the result of the general failures
of postwar planning and specific shortcomings in U.S. and international
cultural policies protecting cultural heritage sites and artifacts.

This essay explores how my recent work on infrastructure and commons applies to environmental resources. Part I briefly describes the core idea, which is developed extensively elsewhere. Part II suggests how it might apply to the natural environment. Specifically, Part II (a) frames the difficult environmental valuation and management problems; (b) applies the infrastructure criteria and delineates environmental infrastructure; (c) offers a few insights regarding environmental management and regulation; and (d) considers how infrastructure theory relates to the literatures on ecosystem services and multiple use management.

The essay is based on a presentation at a panel on infrastructure commons at the 2007 Law & Society Annual Conference in Berlin, Germany. It will be published in the Ecology Law Quarterly along with three essays on infrastructure commons written by David Driesen, Gregory Mandel, and Marc Poirier.

I saw this paper presented at Law & Society. Very interesting!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

A 2006 report by the Government Accountability Office states that little data or research exists on the use of eminent domain by state or local governments. In an effort to help fill this knowledge gap, this capstone examines how eminent domain is used and what variables are important in the execution of eminent domain action by North Carolina county governments. This analysis uses data from a survey of county managers about eminent domain policies and practices. The data show a wide variation of how counties utilize eminent domain, but also suggest that the bulk of eminent domain action is for public infrastructure and public facilities. A wide variety of factors influence county government decisions to condemn property, and the presence of certain structures like religious institutions discourage counties from using eminent domain. Additionally, some counties also engage in alternative strategies before deciding to use their eminent domain authority.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

This Article explores the phenomenon of "exclusionary eminent domain" - the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, low-incomes households are excluded not only from their homes but also from their home neighborhood or locality.

Exclusionary eminent domain, as I am using the term, seems to occur in two distinct contexts. In the suburban context, a structure or structures occupied by low-income households are condemned by a predominantly non-low-income locality in the interest of attracting new development that will house or otherwise be geared to middle-class or wealthy people. The threatened condemnations of mobile home parks in suburban New Jersey towns such as Lodi are examples of this type of exclusionary eminent domain. In the urban gentrification mode of exclusionary eminent domain, a large city with a mix of wealthy and poor areas condemns low-income housing in a gentrifying or largely gentrified area, with the result that the displaced low-income residents must move to poorer areas of the city or out of the city. The use of threats of eminent domain to facilitate the massive Atlantic Yards development in north central Brooklyn - a development that will feature seventeen luxury towers to be constructed by Frank Geahry - illustrates this model of exclusionary eminent domain. This Article assesses the case for a new state constitutional law doctrine limiting exclusionary eminent domain, and argues that, on balance, the advantages of such a doctrine may exceed the disadvantages. The particular form of exclusionary eminent domain doctrine I am positing would incorporate two of the features of the most analogous existing doctrine, the state constitutional law doctrine regarding exclusionary zoning. Those features are, first, judicial evaluation of a locality‘s actions in terms of the metropolitan regional needs for low-income housing and each locality‘s fair share obligation with respect to those needs, and, second, the creation of a rebuttable presumption of illegality when the locality takes an action that will bring its stock of affordable housing below or further below its fair share obligation. An exclusionary eminent domain doctrine would not absolutely bar condemnation of low-income housing in a locality or neighborhood that otherwise has less than its fair share of such housing, but rather would result in the application of heightened review to such condemnations. The condemning authority would have to provide a more compelling, more-tailored justification for condemnation than rational basis review would require.

An exclusionary eminent domain doctrine would raise the cost to local officials of condemning low-income housing located in middle-class or wealthy neighborhoods or localities, and thereby would make it more likely that those officials would configure new development so as to leave such housing in place. The doctrine also would provide a strong incentive for a locality that wanted to proceed with the condemnation of low-income housing to create substitute low-income housing in the same neighborhood as the development site, as by doing so they would negate the claim that condemnations would drop the locality or neighborhood below its pre-condemnation fair share of low-income housing. In addition, the doctrine would have the effect of increasing the bargaining power of owners of low-income housing owners who want to sell, so that they would receive larger payments than they would have if there were no exclusionary eminent domain doctrine.

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

In the American constitutional system the sovereign has the power to enact "regulations which are necessary to the common good and general welfare." But the Fifth Amendment to the United States Constitution proscribes that: "No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation." And the question of whether a sovereign regulation has "taken" private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of "regulatory takings" sits upon a shaky foundation of split decisions; the Court's construction of the "constitutional property" remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This "Great Divide" is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of "judicial restraint." Those in the Court's liberal wing are said to be "judicial activists" who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's "constitutional property" jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Thanks to Florence Roisman for pointing me to Brick by Brick: A Civil Rights Story, a film about housing and education discrimination in Yonkers. According to Florence, the housing issues predominate, and it might make an interesting addition to property courses.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Back in January, I noted that I was going to change my coverage order this Spring. Rather than doing Real Estate Transactions - Recording - Nuisance - Sevitudes - Zoning, I put servitudes first. Doing servitudes did have some advantages -- students, for example, were familiar with servitudes of various sorts when they came up in transactional or recording cases. The downside was that students didn't have as solid a grasp of recording and notice when we covered servitudes. There is a bit of a chicken and egg issue here, but I think that having the recording material before servitudes is more helpful than having servitudes before recording. So next year, I'm going back to the traditional order.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Thanks to my colleague Norman Stein for pointing me to this case of cemetery law. From the AP story:

The 130-acre property was exactly what Michel Guite and his family
wanted: an old Vermont farm with mountain views, rolling hills and
meadows.

There was, however, one wrinkle: The property included a
small family cemetery — with the grave of a War of 1812 veteran —
surrounded by a fence on a scenic knoll. ...

"I've got nothing against any of those people," he said. "I'm only
going to buy this if a judge says `This is now your land, it's your
private property, you're allowed to do whatever you want with it. We
hope you look after it well, God bless you for it, and nobody has any
right to go on your property than they have to go on every other
Vermont farm's property.'"

...

Guite
wants to move three graves that he said are registered with the town,
those of War of 1812 veteran Noah Aldrich II, who died Jan. 15, 1848 at
age 61; and Aldrich's two grandchildren, who died within a day of each
other in 1850 during a flu epidemic.